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Can Someone Not Named in a Will Contest It?

Updated on
November 1, 2019
Article written by
Attorney Kevin O'Flaherty

In this article, we will answer the question, "can someone who is not named in a will contest the will?", including: "who can contest a will?", "what is 'standing' to contest a will?", "what is the definition of a beneficiary in probate?", "what is the definition of an heir?", and how to contest a will.  

Who Can Contest a Will?

People who are considered “interested persons” may challenge or contest a will. Generally, there are three main categories of people who can challenge a will:

  • Beneficiaries of a prior will;
  • Beneficiaries of a subsequent will;
  • Intestate heirs.

What is "Standing" to Contest a Will?

These three groups of people are those who have what is called “standing” to contest the will.  If a person who does not have standing attempts to contest a will, the case will be dismissed at the outset.  Only people with standing can contest a will because only people with standing will be impacted by the outcome of a will contest.  Lawmakers do not want unnecessary legislation clogging the court system.  

What is the Definition of a Beneficiary in Probate?

Beneficiaries are people who are specifically named in a will. Beneficiaries can be spouses, children, sibling or other relatives, but can also be non-relatives; friends, charitable organizations and even pets (who obviously wouldn’t be able to contest a will).

What is the Definition of an Heir?

How do you contest a will?

Heirs are individuals who have the right to inherit the deceased individual’s property according to state statute in the absence of a will.  The state statutes that set forth who a deceased individuals heirs will be are known as “intestate laws.”  To learn more about how Illinois intestate laws work, check out our article, How is an Estate Divided Without a Will?

Heirs may also be named as beneficiaries in a decedent’s will. If a person dies without creating a will, however, heirs have standing because of their right to inherit based on intestate laws. If there was a will, an heir still can challenge the will if he or she was omitted from the will or believes they were left with a disproportionate share in the will.

How to Contest a Will

A will may be contested on the following grounds:

  • That the will was not properly executed according to state law;
  • That the decedent lacked the mental capacity to create the will at the time it was executed; or
  • That the will was executed under duress or undue influence;
  • That the will was executed as a result of a fraud;
  • That the will itself is a forgery; or
  • That the will had been revoked by its creator prior to death.

A will may be contested either by filing a petition to contest the validity of the will with the probate court or by filing a petition for a formal proof of will hearing, or both.   

A formal proof of will hearing requires the executor to submit proof that the will was properly executed before two witnesses. A will contest can challenge the will on the grounds of improper execution or any other grounds.  To learn more about the will contest process, check out our article, Illinois Will Contests Explained.

Can Someone Not Named in a Will Contest It?
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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